Director of Public Prosecutions v Moston-Duggan
[2021] VCC 487
•29 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No. CR-18-02076
Indictment No. J11306273.3
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL MOSTON-DUGGAN |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 April 2021 | |
DATE OF SENTENCE: | 29 April 2021 | |
CASE MAY BE CITED AS: | DPP v Moston-Duggan | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 487 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – Damaging an emergency service vehicle – Dangerous driving while pursued by police – Drive while disqualified – Early pleas of guilty – Extensive prior criminal history – Good prospects of rehabilitation – Supportive family
Legislation Cited: Sentencing Act 1991, ss. 89(3), 5(4) & 16(3D)
Cases Cited:-
Sentence: Total effective sentence of 6 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Malik | Ms A Hogan, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr A C L Marshall Mr C McLennan | Chris McLennan & Co Barristers and Solicitor |
HIS HONOUR:
1 Joel Moston-Duggan, you have pleaded guilty to an indictment containing one charge of damaging an emergency service vehicle (Charge 1) and one charge of dangerous driving while pursued by police (Charge 2). You have also consented to have this Court deal with one transferred related summary offence of drive while disqualified (Summary Charge 5). You have pleaded guilty to this charge.
2 The maximum penalty for damaging an emergency service vehicle is 5 years’ imprisonment. The maximum penalty for dangerous driving while pursued by police is 3 years’ imprisonment. The maximum penalty for drive while disqualified is 240 penalty units or imprisonment for 2 years.
The Facts
3 The prosecution filed a summary of prosecution opening for plea dated 14 April 2021,[1] which your counsel told me I can treat as a statement of agreed facts.
[1] Exhibit P1.
4 At 12:50pm on 17 May 2018, police sighted a red Holden sedan (‘the Holden’) in Pelham Street, Officer. A police vehicle pulled up alongside the driver’s side door of the Holden. The police vehicle was driven by Acting Detective Sergeant Adam Burnett (‘D/S Burnett’). Acting Detective Sergeant Dean Higgins was in the front passenger seat. Detective Senior Constable Stefanec and Senior Constable Malone were in the rear passengers’ seats.
5 All four police officers immediately identified you as the person sitting in the driver’s seat.
6 D/S Burnett told you to turn the vehicle off and get out of the car. You put on your seat belt, leaned forward and accelerated out of Pelham Street. There was also a female passenger in the front seat of the Holden and a male who was standing on the passenger side of the vehicle who tried to get into your car as you accelerated away.
7 Police drove to the corner of Rix Road and Stephens Road and observed the Holden travelling towards them. D/S Burnett performed a U-turn and stopped in the middle of the street, blocking off traffic. Police activated their blue and red flashing lights. At this stage the Holden was approximately 20 to 40 metres away from the police vehicle.
8 You accelerated towards the police vehicle. So as to avoid a collision, D/S Burnett turned the police vehicle and accelerated. As you drove the Holden onto the footpath on the western side of Stephens Road, in an attempt to get past the police vehicle, it collided with the front right corner of the police vehicle.
9 The collision caused damage to the Holden’s front and rear driver’s side door. The front area of the police vehicle was also damaged. (Charge 1)
10 The Holden failed to stop, passed the police vehicle, continued along Stephens Road and turned right into Rix Road. D/S Burnett then performed a U-turn, accelerated and headed in the direction of the Holden.
11 The Holden accelerated at a high speed along Rix Road. Travelling at speed, you drove in a dangerous manner by overtaking several vehicles driven by other civilians. (Charge 2)
12 Due to the manner of your driving and concerns about the steering alignment of the police vehicle, D/S Burnett decided to stop the pursuit of the Holden.
13 Shortly after the offending, you contacted your ex-partner, Samantha Borg, and asked her to pick you up from Trafalgar. You then travelled to Trafalgar, where you were picked up by Ms Borg at approximately 3:30pm.
14 At the time of this offending, you were disqualified from driving. (Summary Charge 5).
15 On the 18th of May 2018, you were advised of the allegations. You elected to answer ‘no comment’ in relation to questions about the offending.
Victim Impact
16 No Victim Impact Statement has been filed in these proceedings. Nonetheless, a judge is entitled to take into account the likely consequences for any victim of the offending conduct to which they were subjected.
17 Charge 1 is an offence involving property and Charge 2 is an endangerment offence. Undoubtedly, the four police officers would have been put in fear by you driving towards their vehicle.[2]
[2] See DPP v Vibro-Pile (Aust) (2016) 49 VR 676, 720–1 [191], 722– [195]–[200] (Maxwell P, Redlich and Whelan JJA).
Personal Circumstances
18 You were born on 27 November 1986. You were 32 years of age at the time of committing these offences and you are now 34 years old.
19 Your father owned a hairdresser/tobacconist shop in Morwell for 35 years. He is now semi-retired and cuts hair two days per week. Your mother was a part-time dental nurse and she cares for her four children. Your parents currently live in Trafalgar.
20 Your older sister runs a transport/finance business and her own clothing line in Queensland. Your younger sister is a psychologist and your brother is an aerospace engineer who lectures at Sydney University and does contract work for Boeing, amongst other clients.
21 You have a good relationship with your parents and siblings. Your father and your partner, Samantha Borg, were in court supporting you at your plea.
22 You completed year 12 at Marist Sion College in Warragal. You were accepted into an electrotechnology course at RMIT but instead chose an electrical apprenticeship. Your work as an apprentice was mostly commercial, generally in the food industry. You travelled all over Victoria through your work. You are now a qualified A grade electrician.
23 After your apprenticeship, you worked as a self-employed contractor for large companies in the food production industry, such as, Parmalat. The work was mostly conducted by you as the sole electrician in charge of a maintenance team.
24 You worked as a renderer since your release on bail until February this year. You obtained that employment through your partner. Your employer, Mr Fielden, provided a reference in your support. You worked with Mr Fielden for 10 months. Mr Fielden said you have great time management skills and a very good work ethic.
25 With the support of Mr Fielden, you found contract electrician work in Bairnsdale. You are again in charge of a maintenance team in the food industry, working 12-hour shifts, four days on, four days off. At the time of the plea, you had been there six weeks and you are still on probation.
26 You continue to help out Mr Fielden with rendering work when needed.
27 You have been in a long-term relationship with Ms Samantha Borg. She is a completely law-abiding person. You are residing together with your three-year-old son. Your relationship was in trouble at the time of your offending but is now recovered. Unfortunately, you lost your second child this year following a miscarriage.
28 Your partner works in a café and a restaurant. Your son goes to day-care three days a week and is otherwise cared for by your partner’s mother, grandmother, brother or uncle at times. You all live in Lakes Entrance.
29 You began taking recreational drugs in your 20’s. You increasingly relied on them as problems occurred in your personal life. These problems surfaced after a long-term romantic relationship ended and two of your friends committed suicide. Your counsel told me, and I accept, you were drug free in custody and have remained so since your return to the community.
Prior Criminal History
30 You have an extensive prior criminal history involving nine appearances between October 2007 and February 2018. The offences include dishonesty offences, drug offences, possessing prohibited, controlled and dangerous weapon/article offences and bail breaching offences. Of particular relevance to the present offending are resist police and five prior convictions for drive whilst authorisation suspended, drink driving offences, excessive speed offences, failing to stop vehicle on police direction offence and a number of other driving offences.
31 Clearly, specific deterrence and protection of the community are relevant sentencing considerations in your case.
Offence Seriousness
32 The offences before me are serious enough, all carrying sentences of imprisonment ranging from two years to five years.
33 Charge 1 on the Indictment was inserted into the Crimes Act1958 in 2017 by s 3 of the Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017. In introducing the Bill for the Act, the then Minister for Police, Ms Lisa Neville, said:
Violence towards police and emergency workers in the line of duty is unacceptable and will not be tolerated. These reforms reflect the government's commitment to cracking down on offenders who harm, or seek to harm, a police officer or emergency worker.
Through the design of these offences and penalties the government’s expectation and intention is clear — charges for the offences of exposing an emergency worker to risk offence and the damage to an emergency services vehicle charges can and should (where appropriate) be laid and prosecuted simultaneously, thereby requiring the imposition of a custodial sentence.[3]
[3] Victoria, Parliamentary Debates, Legislative Assembly, 2 November 2017, 3668.
34 Charge 2 on the Indictment was inserted into the Crimes Act1958 in 2012 by s 32 of the Justice Legislation Amendment (Family Violence and Other Matters) Act 2012. In introducing the Bill for the Act, the then Attorney General, Mr Robert Clark, said:
Despite [a provision in the Road Safety Act 1986], some drivers continue to seek to flee from police. A Victoria Police internal evaluation of pursuit data from 2002 to 2011 found that there were 721 pursuits in 2011, giving rise to 102 collisions and 3 fatalities. This is 62 more pursuits than in 2010, 91 more than 2009 and 176 more than in 2002.
Victoria Police do not instigate pursuits — it is individual drivers who decide to disregard clear and lawful directions from police members to pull over and who then flee at speed, driving dangerously or highly negligently, and thereby create danger to other road users, police members and themselves.
It is clear that more needs to be done to get through to drivers the clear message that if they seek to flee from a lawful police direction to stop, they will face very serious consequences.[4]
[4] Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5077.
35 Clearly, with offences of this type, general deterrence, denunciation and just punishment must be given significant weight.
36 The related summary offence of drive while disqualified is also relatively serious, involving a failure to comply with court orders.
Mitigating Circumstances
37 You pleaded guilty to these offences at the earliest forensically reasonable opportunity. I accept that your pleas have utilitarian benefit. Your pleas also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
38 While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before to make a finding in your favour that you demonstrate true contrition and remorse beyond what is evident from the pleas themselves.[5]
[5] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
39 The prosecutor fairly conceded you have good prospects of rehabilitation, especially in light of the fact you have not reoffended in the nearly three years since committing the present offences.
40 I also accept your counsel’s submission that since your release from custody in April 2020, you have ‘completely turned [your] life around’.[6] You have remained in constant employment and returned to your trade as a qualified electrician. It seems you have learned from your past mistakes, and you are intent on making a better future for yourself and your family. You are to be encouraged in this endeavour.
[6] Outline of Plea dated 11 April 2021 (Ex D1).
41 You have a supportive family, friendship group and former employer, which augers well for your future prospects of rehabilitation.
42 You were released from custody on very strict bail conditions, including a curfew, which I accept you have adhered to. There has been no further offending on your part.
43 I have had regard to the references from your then employer, Mr Brenden Fielden[7] and your partner for the past 12 years, Samantha Borg.[8] I accept you have a strong work ethic and you are a good provider to your family, a loving father and a caring partner.
[7] Letter dated 14 April 2021 (Ex D2).
[8] Letter dated 19 March 2021 (Ex D3).
44 Your counsel submitted that your offending conduct falls at the lower end of the scale for offences of this type. I do not accept this characterisation. Your offending occurred in the context of you fleeing from police officers who were trying to intercept your vehicle, with you manoeuvring your vehicle around the police vehicle blocking your path, thereby causing a collision, after which you drove off at a high rate of speed with the police in pursuit. The police called off the pursuit partly for safety reasons and the threat they believed you posed to other road users.
45 The dangerous driving charge is put both in regard to the manner of your driving and the speed you were driving at.
46 You have spent 680 days in custody in relation to these offences. I accept some this time has been quite onerous because of the COVID-19 restrictions. I take this burden of custody into account in your favour.
Application of Sentencing Principles
47 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact on any victim and your personal circumstances.
48 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
49 General deterrence, denunciation and just punishment are very important sentencing considerations, particularly for the offences charged in Charges 1 and 2 on the Indictment.
50 Moreover, I am of the view in your case specific deterrence and protection of the community need be given some weight.
51 I commend you for the significant steps you have taken since being charged with these offences towards your rehabilitation and I am optimistic regarding your ultimate prospects of rehabilitation.
52 Section 89(3) of the Sentencing Act 1991 applies to Charge 2 (dangerous driving while pursued by police). Accordingly, I must make an order cancelling any licence or permit you hold under the Road Safety Act 1986 and disqualify you from obtaining a licence for a period of at least 12 months.
53 Section 16(3D) of the Sentencing Act 1991 applies to Charge 1 (damaging an emergency service vehicle) and requires that any term of imprisonment I impose for that offence must, unless I otherwise direct, be served cumulatively on any uncompleted sentence or sentences of imprisonment I impose on you.
54 I consider sentences of imprisonment to be immediately served are the only sentences on all charges appropriate to achieve the purposes for which the sentences are imposed.[9]
[9] See Sentencing Act 1991, s. 5(4).
Mr Moston-Duggan
On Charge 1 (damaging an emergency service vehicle) you are convicted and sentenced to imprisonment for 3 months.
On Charge 2 (dangerous driving while pursued by police) you are convicted and sentenced to imprisonment for 3 months.
On the transferred related Summary Charge 5 (drive while disqualified) you are convicted and sentenced to imprisonment for 1 month.
I direct that 2 months of the sentence on Charge 2 and the whole of the sentence of 1 month on Summary Charge 5 be served cumulatively on the sentence imposed on Charge 1 and on each other. This makes a total effective sentence of 6 months’ imprisonment.
I declare 680 days as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 10 months’ imprisonment.
On Charge 2 I order all licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified from obtaining any such license or permit for a period of 12 months commencing from today.
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